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Committee wants to know how much legal consultation is done internally before operations launched

Canadian Forces door gunner Sergeant Chad Zopf leans out of a CH-146 Griffon helicopter during a training exercise in Kandahar district, Afghanistan June 18, 2011 in this handout photo obtained by Reuters March 19, 2018. (Matthew McGregor/Department of National Defence via Reuters)

A committee of parliamentarians wants to see the military's intelligence branch put on a legislative leash, similar to legal constraints on civilian spy agencies.

The National Security and Intelligence Committee of Parliamentarians is recommending the Liberal government think seriously about drafting specific laws to govern how and under what circumstances military intelligence missions can take place.

The idea is meeting resistance already from the Department of National Defence.

The National Security and Intelligence Committee of Parliamentarians released its first annual report on Tuesday. The report paid special attention to military intelligence — which, unlike the country's other spy services, has never faced external review or oversight.

The report also looked at how the federal government sets its priorities for intelligence-gathering and suggested that more focus and leadership is needed from the country's national security and intelligence adviser and the Privy Council Office, which supports the prime minister's office.

The report cited Russia, China and "a handful of other countries" (which it did not name) as intelligence threats, but most of the committee's analysis was aimed at Canada's intelligence infrastructure — notably defence intelligence, the largest intelligence operation in the federal government and the second-best funded.

The National Security and Intelligence Committee of Parliamentarians is recommending the Liberal government think seriously about drafting specific laws to govern how and under what circumstances military intelligence missions can take place. Committee chair David McGuinty breaks down why. 6:26

Canadians 'in the dark'

"One of things we have concluded over the past several months, maybe 18 months since we began, is the extent to which Canadians are often in the dark," said Liberal MP David McGuinty, the committee's chair.

"They don't know what their security apparatus is, they don't know what the security apparatus does, they don't know what the funding levels are, they don't know how the priorities are set. They don't know many things."

Canada's most shadowy intelligence agency is the defence intelligence branch, which operates legally under something called 'Crown prerogative'. Essentially that means that when the federal government decides to deploy the military, the intelligence branch has the legislative authority to go about its business of protecting the military, both abroad and at home.

The committee is recommending the federal government set up specific legislation to govern defence intelligence, something government officials working with the committee say has never been done by any other country.

Defence officials have resisted the idea behind the scenes, according to committee officials who spoke on background following today's release of the committee report.

Military reluctant to accept legislation

The military says it does not want to see operational flexibility and relations with allies undermined by a legislative framework, and argues that the internal review system has worked well.

"I don't know if we got any friction," said McGuinty. "We got some very good submissions to the committee ... To a certain extent, we flushed them out and asked the department to come clean with us and give reasons in writing why there would be concerns."

McGuinty said this first assessment has found no wrongdoing by intelligence agencies.

He noted, however, that the committee already has signalled it will conduct another, more specific review of the Department of National Defence's "collection, use, retention and dissemination of information on Canadian citizens" later this year.

On Tuesday, the committee expressed concerns about how much legal consultation is done internally before intelligence operations are launched by the military.

Rennie Marcoux, the executive director of the national security and intelligence committee of parliamentarians, and Liberal MP David McGuinty release the team's first annual report. (Benoit Roussel/CBC)

It also suggested the Liberal government amend Bill-59, legislation which overhauls national security agencies, to require the defence department to produce annual reports on its own intelligence activities. The bill is before the Senate and Public Safety Minister Ralph Goodale has seemed to pour cold water on the notion of making changes at this late stage.

Defence Minister Harjit Sajjan said he'll review DND's oversight processes in light of the report's conclusions but wouldn't commit to a legal framework.

"We're going to reflect on the recommendations that have been made," he told reporters Tuesday.

The committee underlined the importance of keeping watch over defence intelligence.

National Defence "conducts a broader range of intelligence activities than any other Canadian intelligence organization," said the report, noting that the department has human sources of intelligence and is responsible for signals and online intelligence.

Liberal Chairman of National Security and Intelligence Committe of Parliament David McGuinty explains why the committee recommends specific legislation to govern the Canadian Armed Forces intelligence apparatus. 1:13

The committee's report said its first review was not without challenges.

One of the biggest challenges involved the fact that the committee is "legislatively prohibited from seeing" cabinet secrets.

"Given that the process for setting intelligence priorities involves memorandums to cabinet and records of decision, that restriction made it difficult for the committee to examine and consider all of the relevant information on this topic," the report.

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